Association of State Wetland Managers - Protecting the Nation's Wetlands.

The Compleat Wetlander: Clean Water Rule Implementation Set to Begin

By Jeanne Christie

The Clean Water Rule is scheduled to begin being implemented on Friday, August 28.  There has been a great deal of press coverage about the new rule, bills introduced into Congress to stop it, as well as numerous lawsuits filed to achieve the same objective.  But in the short term none of these actions are going to effect the August 28 start date.

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So what will change on August 28?  For those who are assigned the task of implementing the Clean Water Act, what will they do differently starting next Friday?

In the near term, the answer is likely to be: not much.

Clean Water Rule Ditch itIn recent weeks the Association of State Wetland Managers has had the opportunity to participate in meetings with many state and federal agency staff around the country. The majority of the people we’ve talked to do not anticipate large changes in their programs as implementation begins.

Despite all the news stories about federal overreach under the new rule, no dramatic changes are expected by those implementing the rule right away.  There are several reasons for this:

1)      In some states there will be no change because state programs are already broader than Clean Water Act under both the old rule and the new rule.  State and federal jurisdiction have never been an ‘either or’ issue. States can and do generally define waters of the state under state statutes much more broadly than the federal government does under the Clean Water Act.  That is, they define state waters as all the waters the CWA covers and much more.  For example most definitions of waters of the state include both surface water and ground water.

But jurisdiction alone does not identify what’s regulated.  At both the state and federal level, it’s a two-step process. The first question is:  ‘What is jurisdictional?’.  If a water is jurisdictional, the next question is: ‘Is the activity regulated?’  If an activity isn’t regulated, it doesn’t matter that the water is jurisdictional.  Dredge and fill activities are regulated under the Clean Water Act.  But in addition, roughly twenty states regulate dredge and fill activities in their state under state statutes.  As a result, on August 28 there may be instances in some states where both a federal and state permit were needed in the past where a federal permit will or will not be needed in the future, but a state permit will be required the same as before.

2)      For many wetlands, rivers, lakes, and streams, their status will not change.  Many rivers, streams lakes, and coastal areas previously identified as jurisdictional under the Clean Water Act will continue to be.  Many wetlands jurisdictional only if they meet the significant nexus test will continue to be subject to the significant nexus test.

3)      As before, only certain activities are regulated.  As noted earlier, under the Clean Water Act, even when a water body is jurisdictional, a permit is only required if the planned activity is regulated. Dredge and fill activities are regulated.  Drainage is not.   Nonpoint source runoff is not.  Normal farming, ranching and silviculture activities are not.

4)      The number of permit applications is greatly reduced in the fall and winter.  There is also the season of the year to consider. The number of permit application will increase in the spring at the beginning of the building season.  But in the winter, in much of the country, it’s not feasible to fill or dredge wetlands and other waters.  The number of jurisdictional determinations (JD’s) requested is lower this time of year.

However, there are changes that will occur and those changes are likely to become evident over a longer timeframe The new rule does change the jurisdictional status of some of the streams and wetlands in the United States.  It removes some waters form jurisdiction entirely. It identifies additional waters and activities as not regulated.  It changes the basis for determining jurisdiction for a number of wetlands and other waters. Lastly, for many of the waters whether or not they have been jurisdictional in the past, the way jurisdiction is determined may be somewhat different.

In addition the extent of waters that will be added or subtracted from Clean Water Act jurisdiction will not be even across the U.S. and some areas will experience more or less or different changes than others.  For example the streams subject to jurisdiction are expected to expand in the drier West with the inclusion of all tributaries with a bed and bank and an ordinary high water mark under the new rule.  At the same time, many ditches with intermittent flow that were subject to jurisdiction previously will likely not be and that is likely to be a more common occurrence in the eastern U.S. where much of the intermittent flow comes from groundwater that is closer to the surface in the wetter East than in the West.

Finally, there have always been areas where determining jurisdiction has always been difficult and this will continue to be the case with the new rule.  This is because the many thousands of miles of streams have been relocated and straightened and may look like a ditch.  While some stormwater systems are clearly artificial, others are not separate from the waterbody they were designed to protect and their status is, always has been, ambiguous.  Although the U.S. Environmental Protection Agency has asserted that it anticipates no new Water Quality Standards,  Total Maximum Daily Loads, or Point Source discharges are going to be required under the new rule, state laws and regulations, citizen suits and other issues may require additional work by the states that carry out these programs over time.

The U.S. Environmental Protection Agency and the U.S. Army Corps of Engineers have been working hard on developing materials to assist states, tribes, and local governments as well as the general public in understanding the new rule and these materials should be available in the near future.  They will be posted on EPA and Corps websites.  To look for updates, check out “Documents Related to the Clean Water Rule”  and in particular scroll down to “Additional Information”.  Technical Questions and Answers for  Implementation of the Clean Water Rule will be added to regularly (there is currently information about grandfathering existing permits included in the material there), and other new information about the Clean Water Rule will be added to the web page as well.

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One Response to The Compleat Wetlander: Clean Water Rule Implementation Set to Begin

  1. Sister Wetlands says:

    At this time there is no jurisdictional determination form nor official guidelines for determining jurisdictional boundaries in the field. Local Corps districts are unprepared and many do not share EPA’s enthusiasm for the new rule, so disorder, delays, confusion and incompetence will continue to prevail in the permitting process.

    Meanwhile, U.S. Supreme Court decisions (SWANCC and Rapanos) are still the law of the land. SWANCC deregulated isolated wetlands, Rapanos deregulated intermittent and ephemeral streams. Landowners may continue to rely on the U.S. Supreme Court when there is conflict between the Court and EPA’s regulations. The agencies will continue to begrudgingly respect the authority of the Supreme Court by not taking enforcement action in cases where there is a legitimate discrepancy.

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